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RULE 46. RELEASE FROM CUSTODY

Effective Date: 3/1/2006

(a) Release Before Trial.

(1) In General. At the initial appearance before a magistrate of a person charged with an offense, the magistrate must order the person released pending trial on the person's personal recognizance or on execution of an unsecured appearance bond in an amount specified by the magistrate, unless the magistrate determines, in the exercise of the magistrate's discretion, that unconditional release will not reasonably assure the appearance of the person as required.

(2) Setting Release Conditions. If the magistrate concludes that unconditional release is not appropriate, release conditions may be imposed, either in lieu of or in addition to the methods of release specified in Rule 46(a)(1). The magistrate may impose any release condition that will reasonably assure the appearance of the person for trial including:

(A) placing the person in the custody of a designated person or organization agreeing to supervise the person;

(B) requiring the person to maintain employment, or, if unemployed, to actively seek employment;

(C) requiring the person to maintain or begin an educational program;

(D) placing restrictions on the travel, association, or place of abode of the person during the period of release;

(E) requiring the person to avoid all contact with an alleged victim of the crime or with a potential witness who may testify concerning the offense;

(F) requiring the person to report on a regular basis to a designated law enforcement agency, or any other agency;

(G) requiring the person to comply with a specified curfew;

(H) requiring the person to refrain from possessing a firearm, destructive device, or other dangerous weapon;

(I) requiring the person to refrain from any use of alcohol, or any use of a narcotic drug or other controlled substance, as defined in N.D.C.C. ch. 19-03.1, without a prescription by a licensed medical practitioner;

(J) requiring the person to undergo available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency, and to remain in a specified institution if required for that purpose;

(K) requiring the execution of an appearance bond in a specified amount and the deposit with the court of cash or other security as directed, in an amount not to exceed ten percent of the amount of the bond, which deposit must be returned on performance of the release conditions;

(L) requiring the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu of a bail bond; or

(M) imposing any other conditions reasonably necessary to assure appearance as required, including a condition requiring the return of the person to custody after a specified time of day.

(3) Release Condition Factors. In determining conditions of release that will reasonably assure appearance of a person, the magistrate, on the basis of available information, must consider:

(A) the nature and circumstances of the offense charged;

(B) the weight of the evidence against the person;

(C) the person's family ties, employment, financial resources, character and mental condition;

(D) the length of the person's residence in the community;

(E) the person's record of convictions;

(F) the person's record of appearance at court proceedings or of flight to avoid prosecution or failure to appear voluntarily at court proceedings; and

(G) the nature and seriousness of the danger to any person or the community posed by the person's release.

(4) Release Order. A magistrate authorizing the release of a person under Rule 46(a) must:

(A) issue an order containing a statement of the release conditions imposed, if any;

(B) inform the person of the penalties applicable to violations of the release conditions; and

(C) advise the person that a warrant for the person's arrest will be issued immediately upon any violation.

(5) Review of Release Conditions. A person for whom release conditions are imposed who continues to be detained 48 hours after the release hearing because of an inability to meet the conditions may, upon request, have the conditions reviewed by a magistrate.

(6) Amending Release Conditions. A magistrate ordering the release of a person on any condition specified in a release order may amend the order at any time to impose additional or different conditions of release.

(7) Release Information. Information stated in, or offered in connection with, an order entered under Rule 46(a) need not conform to the North Dakota Rules of Evidence.

(8) Collateral Security. Rule 46(a) does not prevent the disposition of any case or class of cases by forfeiture of collateral security when that disposition is authorized by the court.

(b) Release During Trial. A person released before trial continues on release during trial under the same terms and conditions. But the court may order different terms and conditions or terminate the release if necessary to ensure that the person will be present during trial or that the person's conduct will not obstruct the orderly and expeditious progress of the trial.

(c) Motion for Release.

(1) Motion to District Court. A person must make any application for release, modification of release conditions, or revocation of release after a notice of appeal from a judgment of conviction has been filed, to the district court before the motion may be made to the supreme court. If the district court refuses release pending appeal, or imposes conditions of release, or revokes release, the court must state in writing the reasons for the action taken.

(2) Motion to Supreme Court. After first making a motion to the district court under Rule 46(c)(1), a person may make a motion for release, or for modification of the conditions of release, or for revocation of release, pending review to the supreme court or to one of its justices. After reasonable notice to the appellee, the supreme court or one of its justices must decide the motion promptly on the documents, affidavits, and portions of the record the parties present. The supreme court or one of its justices may order the release of the appellant pending disposition of the motion.

(d) Release of Material Witness. A magistrate may issue a warrant for detention of a person if:

(1) it appears by affidavit that the testimony of the person is material in any criminal proceeding; and

(2) it is shown that it may be impracticable to secure the person's presence by subpoena.

The magistrate may impose release conditions as specified in Rule 46(a) on a detained material witness. A material witness may not be detained because of inability to comply with any release condition if the testimony of the witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release may be delayed for a reasonable time until the deposition of the witness is taken.

(e) Surety.

(1) Approval. The court must not approve a bond unless the surety appears to be qualified. Every surety, except a legally approved corporate surety, must demonstrate by affidavit that its assets are adequate. The court may require the affidavit to describe the following:

(A) the property that the surety proposes to use as security;

(B) any encumbrance on that property;

(C) the number and amount of any other undischarged bonds and bail undertakings the surety has issued; and

(D) any other liability of the surety.

(2) Suspension. If a surety fails to make payment on forfeited bail within ninety days, the surety and its agent will be suspended automatically from writing further bonds. The suspension will continue for a period of thirty days from the date the principal amount of the bond is deposited in cash with the clerk of court.

(f) Bail Forfeiture.

(1) Declaration.

(A) The court must declare the bail forfeited if a condition of the bond is breached.

(B) If the court declares bail forfeited, the clerk of court must notify any surety in writing and direct the surety to make payment under the terms of the bond within ninety days of the date of the forfeiture order. The clerk must send a copy of the forfeiture order with the notice.

(2) Setting Aside.

(A) The court may set aside in whole or in part a bail forfeiture upon any condition the court may impose if it appears justice does not require bail forfeiture.

(B) Any motion for a bail forfeiture to be set aside must be filed with the clerk of court within ninety days of the date of the order of forfeiture.

(3) Enforcement.

(A) Default and Execution. If it does not set aside a bail forfeiture, the court must, upon the prosecution's motion, enter a default judgment.

(B) Jurisdiction and Service. By entering into a bond, each surety submits to the court's jurisdiction and irrevocably appoints the clerk of court as its agent to receive service of any filings affecting its liability.

(C) Motion to Enforce. The court may, upon the prosecution's motion, enforce the surety's liability without an independent action. The prosecution must serve any motion, and notice as the court prescribes, on the clerk of court. If so served, the clerk must promptly mail or send by third-party commercial carrier a copy to the surety at its last-known address.

(4) Remission. After entering a judgment under Rule 46 (f)(3), the court may remit in whole or in part the judgment under the same conditions specified in Rule 46(f)(2)(A).

(g) Exoneration. The court must exonerate the surety and release any bail when a bond condition has been satisfied or when the court has set aside or remitted the forfeiture. The court must exonerate a surety who deposits cash in the amount of the bond or timely surrenders the defendant into custody.

(h) Supervising Detention Pending Trial. To eliminate unnecessary detention, a court must supervise the detention of defendants it orders held awaiting trial and of persons it orders held as material witnesses.

Rule 46 was amended, effective March 1, 1986; March 1, 1990; January 1, 1995; March 1, 1999; March 1, 2003; March 1, 2005; March 1, 2006.

Rule 46 is an adaptation of Fed.R.Crim.P. 46.

Rule 46 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

Subdivision (a) is adapted from the language of the Bail Reform Act of 1966 (P.L. 89-465, 80 Stat. 214), 18 U.S.C. § 3146.

Subdivision (a) was amended, effective January 1, 1995, to make the safety of any other person or the community a relevant consideration when determining which conditions of release will reasonably assure the appearance of a person charged with an offense. Additional conditions of release were added from the Bail Reform Act of 1984, 18 U.S.C. § 3142(c). Paragraph (a)(5) was amended, effective March 1, 2005, to clarify that a magistrate who conducts a review of release conditions need not be the same magistrate who imposed the release conditions. A separate subdivision dealing with review of release conditions was repealed effective March 1, 2005. Under N.D.C.C. § 19-03.1-46 (Bail - Additional Conditions of Release), persons charged with controlled substance offenses may be subject to release conditions in addition to those listed in paragraph (a)(2).

Subdivision(b) follows the federal rule and provides for bail during trial. This provision is consistent with previous North Dakota law.

Subdivision (c) and N.D.R.App.P. 9(b) are derived from Fed.R.App.P. 9(b). These subdivisions regulate the procedure for release of the defendant when the jurisdiction of the appellate court has attached by virtue of the filing of an appeal from a judgment of conviction. Both subdivision (c) and N.D.R.App.P. 9(b) were amended, effective March 1, 1986, to permit modification or revocation of the release of a defendant who was initially released pending appeal and to clarify that an application for release after a notice of appeal is filed must be made in the first instance in the district court and thereafter in the supreme court. Subdivision(c) and N.D.R.App.P. 9(b) were further amended, effective March 1, 2003. The language and organization were changed to make subdivision (c) and N.D.R.App.P. 9(b) more easily understood.

Subdivision (d) is similar to 18 USC § 3149.

Subdivision(e) follows subdivision (e) of the federal rule.

Paragraph (e)(2) was added, effective March 1, 2006, to provide for automatic suspension of sureties that fail to pay forfeited bail.

Subparagraph(f)(1)(A) follows paragraph(f)(1) of the federal rule and previous North Dakota law and requires that a forfeiture must be declared if there is a breach of bond conditions. The forfeiture provision is designed to discourage violations of bail covenants and to deter defaults which create unnecessary delay and expense to the prosecution.

Subparagraph (f)(1)(B) was added, effective March 1, 2006, to create a mechanism for notifying sureties of bail forfeiture orders.

Subparagraph (f)(2)(A) permits a forfeiture to be excused if justice does not require its enforcement. Subparagraph (f)(2)(B) was added, effective March 1, 2006, to clarify that requests to excuse may be made by motion and to set a deadline for such motions. Paragraph(f)(3) follows paragraph (f)(3) of the federal rule and establishes a single procedure through which the court, on motion, can enforce forfeited bail bonds. Paragraph (f)(3) was amended, effective March 1, 1986, to delete "district" court and make clear that obligors, by entering into bond, subject themselves to the jurisdiction of an appropriate court and appoint the clerk as their agent for service of any documents.

Paragraph (f)(3) was amended, effective March 1, 1999, to allow copies of the motion to be served via commercial carrier as an alternative to mail.

Paragraph (f)(4) follows paragraph(f)(4) of the federal rule. A determination for remission should be made only after judgment of default has been entered.

Subdivision (g) follows subdivision (g) of the federal rule. The provision that the surety may surrender the defendant into custody, whether or not the case has been disposed of, is consistent with previous North Dakota law and avoids a breach and forfeiture when the surety has reason to anticipate that defendant will not appear.

Subdivision (h) follows subdivision (h) of the federal rule.

SOURCES: Joint Procedure Committee Minutes of September 22-23, 2005, pages 18-20; April 28-29, 2005, pages 8-9; January 29-30, 2004, pages 15-16, 18;September 23-24, 1999, pages 18-19; January 29-30, 1998, page 20; April 28-29, 1994, pages 4-6; January 27-28, 1994, pages 18-23; September 23-24, 1993, pages 21-23; April 20, 1989, page 4;December 3, 1987, page 15; November 29, 1984, page 12; April 26, 1984, pages 11-17 and 21;January 19, 1984, pages 5-9; April 24-26, 1973, pages 14-15; December 11-15, 1972, pages 50-53; November 18-20, 1971, pages 12-22; Fed.R.Crim.P. 46.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. §§ 29-08-04, 29-08-05, 29-08-06, 29-08-07, 29-08-08, 29-08-09, 29-08-10, 29-08-11, 29-08-12, 29-08-13, 29-08-14, 29-08-15, 29-08-17, 29-08-18, 29-08-19, 29-08-20, 29-08-21, 29-08-23, 29-08-24, 29-08-25, 29-12-02, 29-21-34, 29-28-16, 29-28-17, 31-03-21, 31-03-22, 31-03-23, 31-12-10, 33-12-36, 33-12-37, 33-12-38.

CONSIDERED: N.D.C.C. §§ 12-01-13, 22-02-09, 29-05-12, 29-05-13, 29-05-14, 29-08-01, 29-08-02, 29-08-03, 29-08-16, 29-08-22, 29-08-26, 29-08-27, 29-21-21, 29-21-23, 29-22-31, 31-03-19, 31-03-20, 31-03-24.

CROSS REFERENCE: N.D.R.App.P. 9 (Release in Criminal Case); N.D.C.C. § 19-03.1-46 (Bail - Additional Conditions of Release).

Effective Date Obsolete Date
03/01/2006 View
03/01/2005 03/01/2006 View
03/01/2003 03/01/2005 View
03/01/1999 03/01/2003 View
03/01/1990 03/01/1999 View